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Towards a Synthesis Between Islamic and Western Jus in Bello

Florida State University Journal of Transnational Law & Policy, Vol. 21

Abstract:

In the body of international humanitarian law (‘IHL’), there is a lacuna regarding the status of combatants engaged in asymmetric warfare. This has arisen, at least in part, out of a failure to establish a satisfactory distinction between civilians and combatants reflecting the nature of such conflicts and commanding the respect of parties to them.

The recent killing of Osama Bin Laden by US Special Forces Operatives has provided publicity to the debates regarding the legal status of irregular combatants. Some have claimed that Bin Laden ought to have been captured alive and tried in a court. The US administration has argued that Bin Laden’s killing was justified as part of an ongoing war. At least some of the legal and moral uncertainty surrounding Bin Laden’s death, as well as the status of many other such belligerents, stems from a lack of clarity in IHL.

It is imperative that new provisions of IHL be developed to accommodate the dynamics of modern warfare. In order that these may attain the requisite level of peremptory force to bind both state and non-state actors, a new element of legitimacy must also be secured.

This paper suggests that this gap in IHL be solved by recourse to a combination or synthesis of norms of Islamic with traditional sources of Western law. Perhaps contrary to popular belief, many of the tactics commonly employed by modern terrorists are contrary to Islamic law. Given that the participants in much modern warfare operate on a religious, rather than a nationally-motivated ideological agenda, it seems fitting that this apparent Clash of Civilisations be moderated by a solution which draws on the legal doctrines of both groups, rather than just traditional Western Just War theory.